2010 PLP 1153 (CLC)

CH. MUHAMMAD TARIQ, J.

Brief facts of the case are that on 2-1-1990, the petitioners/plaintiffs filed a suit for pre-emption in respect of land measuring 11 Kanals, 17 Marlas situated in the Revenue Estate Khara Thesil Noshara Virkan, District Gujranwala. The vendee purchased the suit-land against the consideration of Rs.75000 vide Mutation No.389 dated 29-3-1989 and at the time of sale, the vendee/defendants were also delivered the possession of the suit-land. The defendants/respondents were asked to acknowledge their superior rights on the grounds of Shafi Sharik, Shafi Khalit and Shafi Jar, but they refused to do so.

2. The defendants were summoned who resisted the suit by filing their written statement whereby they raised a number of preliminary objections. Out of divergent pleadings of the parties, following issues were framed. ISSUES. (1) Whether the plaintiffs have got superior right of pre-emption against the vendees/defendants? OPP (2) Whether the suit is within time? OPP (3) Whether the plaintiffs have made mandatory "Talabs" in accordance with Islamic Law of pre-emption before filing of this suit? OPP (4) Whether plaintiffs are estopped by their own act and conduct to bring this suit? OPD (5 Whether the suit is undervalued for the purposes of court-fee and jurisdiction? If so, its effect? OPD (6) Whether description of suit property is incorrect? If so, its effect? OPD (7) Whether ostensible sale price of Rs.75000 was fixed in good faith and actually paid? OPD (8) If not, what was the market value of the property at the time of sale? OP Parties. (9) Relief.

3. The parties adduced their oral as well as documentary evidence and vide judgment and decree dated 20-7-1998, the learned Civil Judge, Gujranwala decreed the suit of the plaintiffs/petitioners on the ground that the petitioner are co-sharer in the suit Khata. The defendants filed appeal and on 21-11-2001, learned Additional District Judge, Gujranwala accepted the appeal and set aside the impugned judgment and decree passed by the learned trial Court and the suit of petitioners/plaintiffs was dismissed, hence this Civil Revision.

4. The learned counsel for the petitioner contends that trial Court while deciding Issue No.1 accepted the superior right of plaintiffs/ petitioners on the ground that the petitioners are co-sharer in the Khata and the impugned judgment and decree is not maintainable because the learned Additional District Judge, Gujranwala has ignored Exh.P.2 which is register Haqdaran Zameen in which, the plaintiffs/petitioners have been shown as co-sharer in Khata. The learned counsel further contends that the petitioner purchased the land in disputed Khata, on 29-3-1989 vide Mutation No.390 Exh.D.2 which was again ignored by the learned Additional District Judge, Gujranwala. He further contends that the impugned judgment is result of misreading and non-reading of evidence, the learned Court has not applied his judicial mind, therefore, Civil Revision be allowed, impugned judgment and decree dated 21-11-2001 passed by the learned Additional District Judge, Gujranwala be set aside and the judgment and decree passed by the learned trial Court be restored.

5. On the other hand, learned counsel for the respondent has fully supported the impugned judgment and has prayed that Civil Revision be dismissed with cost.

6. Arguments heard, record perused.

7. Both the parties have argued their case on the ground of superior right of pre-emption that whether the plaintiff has got superior rights of pre-emption against the vendee. Issue No.1 is a crucial issue. It is important to point out that on 2-1-1990, suit for pre-emption was filed. This was the interregnum period when law of pre-emption was declared by the honourable Supreme Court of Pakistan as against the injunctions of Islam and during the period 1-8-1986 to 8-3-1990 there was no law of pre-emption enforced in the country. However, in the instant case, sole question is that whether the plaintiffs/petitioners have got superior rights of pre-emption against the defendants or not. The learned trial Court while deciding issue No. 1 relied on Exh.P2 which is a copy of register Haqdaran Zameen for the year 1986/1987 in which the petitioner was shown as co-sharer in the Khewait and this judgment was reversed by the learned Additional District Judge, Gujranwala. Admittedly, the defendants purchased the suit-land on 29-3-1989 vide Mutation No.389 and on the same day i.e. on 2-1-1990, the petitioners/plaintiffs also purchased the land in the same Khewait vide Mutation No.390 Exh.D.2. 4 Admittedly, the mutation of respondents/defendants is prior as against the mutation of sale in favour of petitioners which is Mutation No.390 which was sanctioned after the mutation of sale in favour of defendants. Irrespective that both the mutations were sanctioned and attested by the same Revenue Officer on the same date and in the same Revenue Estate. Therefore, inference could be clearly derived that when the land was transferred in favour of defendant/vendee vide Mutation No.389, the petitioners were not owner in the suit Khewait. Benefits from law laid down in case Muhammad Malik v. Haji Muhammad Bashir and others reported as 1994 CLC 2020 where it was held that pre-emptor in order to succeed must have preferential rights at the time of sale, at the time of institution of suit and at the time of decree of trial Court. Resultantly, this Civil Revision fails. No order as to costs. A.R.K./A-85/L Revision dismissed.